Coffee v. Harris

• Decision Date: 16 August 1921
• Docket Number: 992
• Citation: 199 P. 931,27 Wyo. 494
• Parties: COFFEE v. HARRIS
• Court: Wyoming Supreme Court

199 P. 931

27 Wyo. 494

COFFEE v. HARRIS

No. 992

Supreme Court of Wyoming

August 16, 1921

APPEAL from the District Court of the First Judicial District, in and for the County of Goshen, HON. WILLIAM C. MENTZER, Judge.

On Petition for Rehearing, See 27 Wyo. 394, 197 P. 649.

Rehearing denied.

Erle H Reid and Wright, Mothersead & York, for plaintiffs and respondents.

Bever &amp Roushar and A. R. Honnold, for defendants and appellants.

BLUME J. POTTER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, J.

A petition for rehearing has been filed herein. One of the grounds alleged therefor is that the case was not heard by all three members of the court. It has, however, been twice held by this court that that is not a sufficient ground. (Stanton v. R. Co., 25 Wyo. 138, 142, 165 P. 993; Wolbol v. Steinhoff, 25 Wyo. 227, 258, 168 P. 251.) Again, it is urged that the court erred in holding the provisions of section 6404 of the statutes mandatory, and contending, further, that because a motion for extension was filed prior to the expiration of the 70 days allowed by the statute that the court below retained the power to make a valid extension thereafter, although the statutory period had then expired. The writer hereof has made an independent investigation of these questions, has read the authorities cited in the original opinion herein filed, and numerous authorities besides, and he has found no good reason why he should dissent from the other members of the court in the opinion that no reasons exist why a rehearing should be granted.

This court held in Schlessinger v. Cook, 8 Wyo. 484, 58 P. 757 that the time for filing a bill of exceptions is jurisdictional. The principle of that case was followed in Goodrich v. Big Horn County Bank, 26 Wyo. 42, 174 P. 191, decided in 1918, holding that the time for filing a record on appeal under section 6404 of the statutes is jurisdictional. That holding was adhered to in a decision in the same case reported in 26 Wyo. 492, 188 P. 36. The legislature has met twice since the first decision, and once since the second decision in the Goodrich case, and yet has not seen fit by any act to modify the effect of those decisions, and it is altogether too late now to urge upon this court that the statute is directory merely. The case of Allen v. Lewis, 26 Wyo. 85, 177 P. 433 is not inconsistent with the Goodrich case and deals with an entirely different question.

Let us first consider the situation here without reference to the motion for extension filed on August 21. The time for filing the record on appeal expired on August 23rd. That time being jurisdictional, the failure to file the record on that date deprived the appellants of the right to file it thereafter, and prevented this court from subsequently acquiring jurisdiction of the case, unless by the order of September 4th that jurisdiction, once extinct, was revived. Clearly no right existed to file the record between August 24th to September 4th, and hence the order made on the latter date could not apply to a right still existing, but created a new right, if any. No authority to do so exists, however, under the statute. The statute allows the making of an extension or enlargement, not the creation of a new right. "The word 'extended' as employed in this statute means 'prolonged', and of course a prolongation of time cannot occur after the time originally limited has expired." (State v. Scott, 113 Mo. 559, 20 S.W. 1076.) "While the rule does not expressly provide that the application and order for extension of the time, in which to prepare and serve the record on error, be made within the time previously fixed for that purpose, it is, nevertheless, certain, that such is its meaning. There can be no extension of that which has already elapsed or ended." (Morford v. Colorado, etc. Co., 62 Colo. 310, 162 P. 147.) In Kapiolani Estate v. Peck & Co., 14 Hawai'i 580, the court, speaking of the extension of time for filing a bill of exceptions, says:

"He is empowered to allow a bill only if it is presented during the term or within ten days thereafter, although he may allow further time for its presentation; but if an extension has not in the meantime been allowed how does the case stand at or immediately after the expiration of the ten days? Is not the power then exhausted and is not the time for presenting the bill at an end? We think both questions must be answered in the affirmative. If not, what is it that has extended the time and what has kept the power alive? In this case the ten days expired not later than Nov. 7, 1901. In the interval between that day and November 20th following, did the defendant have any right to file a bill of exceptions? We think clearly not; and all that the statute authorizes is an extension of time or an allowance of further time, and not the grant of a new right of appeal or a revesting of an old right once lost. If the extension attempted in this case is valid so would a similar one be which is given six months or a year after the expiration of the ten days. We cannot believe that it was the intention of the legislature to authorize such a procedure. The mere consent of the parties could not, of course, confer jurisdiction where none otherwise existed."

In White v. Abstract Co., 96 Iowa 343, 65 N.W. 305, the court said:

"It will be well to specifically state that when the time for filing a bill of exceptions, as fixed by law, the consent of parties, or the order of the court or judge expires, so that the right must be revived, rather than extended, neither the court, nor judge has that right. While either may possess the right, by proper order, to extend or continue the time for the exercise of such right, neither has the right, when it is once lost, to restore it."

In Dist. of Col. v. Roth, 18 App. D.C. 547, the court uses this reasoning under a rule of court:

"The application for and obtaining the order for the extension of time prescribed by the rule should be made within the period of forty days, otherwise it is not an extension of a current period, but the prescribing of a new and additional period; and if that can be done after the expiration of the first period of forty days, it may be done at any time, no matter how long after such expiration, and there would be in reality no limit to the time within which a transcript could be filed--that right being made to depend entirely upon the indulgence of the judge below. This is clearly not the intention of the rule."

In the case of Clark v. Crane, 57 Cal. 629, the court reasons likewise and says:

"The court or judge can extend the time under Sec. 1054 above cited, but such extension must be granted within the period of ten days, or within such other period during which the right to give such notice is still alive. After the right to give such notice is gone, giving further time could not be called an extension of the...